U.K. Supreme Court Rules on State Immunity and (Crown) Act of State Doctrines
On 17 January 2017, the U.K. Supreme Court (the Supreme Court) handed down three exceptionally significant decisions on allegedly tortious acts done by British Armed Forces in the context of overseas military operations or by government officials alleged to have been complicit in the wrongful acts done by foreign States. Each of the three decisions dealt with important questions of law such as State immunity, the “Foreign Act of State” doctrine, the “Crown Act of State” doctrine as well as the compatibility of overseas detentions with Article 5 of the European Convention of Human Rights (ECHR).
The three decisions at issue are: (i) Rahmatullah (No 2) e.a. v. Ministry of Defence; (ii) Al-Waheed and Serdar Mohammed v. Ministry of Defence; and (iii) Belhaj e.a. v. Straw e.a.
Each decision will be discussed in turn.
Rahmatullah (No 2) e.a. v. Ministry of Defence
The first of the three judgments concerned the nature and scope of the doctrine of “Crown Act of State” doctrine.
The “Crown Act of State” doctrine is a defence that the U.K. government can bring forward against an action in tort brought against it by a foreigner before U.K. courts in respect of acts, authorised or ratified by the Crown, committed by U.K. officials abroad. The exact boundaries of this doctrine remain, however, largely unclear as is shown by the case at hand.
The present case involved claimants who claimed to have been wrongfully detained and mistreated by UK and US forces in the course of the conflicts in Iraq and Afghanistan.
In its defence against those claims, however, the U.K. government raised the “Crown Act of State” doctrine and sought the actions to be dismissed as inadmissible.
The Supreme Court sided with the U.K. government and ruled that the U.K. government was entitled to rely on the “Crown Act of State” doctrine. More particularly, the Supreme Court found that, insofar as the claims were based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown Acts of State for which the U.K. government could not be liable in tort.
In reaching its decision, the Supreme Court further clarified the “Crown Act of State” doctrine and appeared to lay down a test to determine whether an act is non-justiciable under the “Crown Act of State” doctrine. According to the Supreme Court the doctrine may only apply to (i) “an exercise of sovereign power, inherently governmental in nature; done outside the United Kingdom; with the prior authority or subsequent ratification of the Crown” in the conduct of the Crown’s foreign relations; and (ii) an act that must be so connected to the given foreign policy that the latter cannot be pursued without this act being committed.
Al-Waheed and Serdar Mohammed v. Ministry of Defence
The second of the three judgments centres on allegations that British Armed Forces had unlawfully detained two suspected combatants while engaged in peacekeeping operations in Iraq and Afghanistan under mandates from the UN Security Council. The detentions, which occurred following the combatants’ respective captures by British Armed Forces, were claimed to be in violation of Article 5 ECHR (the right of liberty) which provides that:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
By a majority of 7 to 2, the Supreme Court agreed. It held that British Armed Forces had, in principle, the power to detain prisoners for periods of more than 96 hours if it were necessary for imperative reasons of security, but that the detention procedure used did not comply with Article 5(4) ECHR (which provides that “[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful“) because it did not afford prisoners an effective right to challenge their decision.
The reasons for the Supreme Court’s ruling were the following:
First, in respect of whether British Armed Forces had a legal power to detain the individuals in excess of 96 hours, the majority found that the legal power to capture and detain enemy combatants for imperative reasons of security was implicitly conferred upon the British Armed Forces by the relevant UN Security Resolutions.
Second, in respect of the question of whether the legal authority conferred by the relevant UN mandate could be reconciled with Article 5 ECHR, the Supreme Court relied on the case of Hassan v. U.K. in which the European Court of Human Rights held that the power of detention recognised in public international law in the course of an international armed conflict could be “accommodated” within the grounds of Article 5 ECHR. In the case at hand, however, the Supreme Court was confronted with a non-international armed conflict.
Nevertheless, by way of analogy, the majority expanded on the logic of the Hassan judgment to find that Article 5 ECHR was broad enough to also “accommodate” non-international armed conflicts where the power to detain was derived from a resolution of the UN Security Council. In doing so, the Supreme Court noted that the six exceptions to detention contained in Article 5 ECHR had been formulated in relation to peacetime conditions and, as a result, could not be regarded as exhaustive in conditions of armed conflict.
Thirdly, having escaped the textual limitations of the six permitted grounds identified in Article 5 ECHR, the Supreme Court emphasised that it was still important that the overall objective of Article 5 ECHR was respected. For the Supreme Court, this objective was the protection of individuals against arbitrariness. To achieve it, the Supreme Court set out the dual requirements: (i) that there was a legal basis for the detention; and (ii) that the power to detain was not exercisable on grounds which were unduly broad, opaque or discretionary.
Focusing on the second requirement, the Supreme Court held that the minimum standard from arbitrariness under Article 5(4) ECHR required that an impartial body carry out initial and regular reviews in accordance with a fair procedure. The Supreme Court found, however, that in the case at hand, those procedural standards had been breached in two respects: (i) there was no independent body to carry the review; and (ii) the detainee did not have an effective right to challenge his detention.
Belhaj e.a. v. Straw
The final decision concerned the question of whether claims that the U.K. arranged or conspired in the unlawful detention and mistreatment of individuals, carried out by foreign authorities overseas, were properly triable in the English courts.
In this case, the first claimants (Mr Belhaj and his wife) alleged that by having informed the Libyan authorities of their whereabouts, leading to them being ultimately rendered to Libya, the U.K. had assisted in their illegal detention, as well as torture and inhumane and degrading treatment inflicted on them in Malaysia, Thailand and Libya by Malaysian officials, Thai officials and US agents.
This case also involved a third claimant, Mr Rahmatullah, who alleged that the U.K. had assisted in his unlawful detention and alleged mistreatment imposed by US authorities as the British forces had detained him in Iraq before he was transferred into US custody and transferred to a US base in Afghanistan.
The three claimants brought their claims before U.K. courts. However, instead of bringing their claims directly against Malaysia, Thailand, the United States or Libya (which would undoubtedly have been barred by State immunity), the claimants brought their action against the U.K. government.
The U.K. government relied on the doctrines of State immunity (i.e. the doctrine according to which a foreign sovereign nation may not be sued before a foreign court) and/or the “Foreign Act of State” doctrine (i.e. the doctrine according to which U.K. courts should refrain from inquiring into the validity of official public acts taken by a foreign government on its own territory) in order to have the claims struck out on grounds that the Supreme Court could not hear those claims. According to the U.K. government, both doctrines applied because, in order to decide the cases, the English courts would have to decide on the legality of the acts of foreign States (i.e. Malaysia, Thailand, the United States and Libya).
In a unanimous decision, the Supreme Court ruled that neither the doctrine of State immunity nor the doctrine of “Foreign Act of State” presented a bar to the case proceeding to trial.
First, the Supreme Court found that the doctrine of State immunity did not apply in the case at hand because the relevant foreign States which could have been affected by a decision of the U.K. courts (and which would therefore had been entitled to rely on the doctrine of State immunity) were not parties to the proceedings and could not therefore be affected in any legal sense by those proceedings. The U.K. government had unsuccessfully attempted to argue that an effect on those States’ non-legal interests, specifically damage of a reputational nature, should be considered sufficient to engage the doctrine.
Secondly, as for the doctrine of “Foreign Act of State“, the Supreme Court identified three types of Foreign Act of State rules: (i) a foreign State’s legislation will normally be recognised and treated as valid in so far as it affects movable or immovable property within that State’s jurisdiction; (ii) a court will not question the validity of a foreign State’s act in respect of property within its jurisdiction; and (iii) a court will not adjudicate and question certain categories of acts committed by a foreign State abroad, even if outside the jurisdiction of that State. The Supreme Court then noted that only this third type of “Foreign Act of State” was at issue here.
In considering this third type of rule, the Supreme Court emphasised that it was important to adopt a case-by-case approach having regard to the specific act and alleged violation at stake in order for a court to abstain from deciding a dispute. In the case at hand, however, the Supreme Court ruled that since the alleged act consisted of jus cogens and human rights violations (the importance of which was so great) a court could carve out an exception to the rule of “Foreign Act of State“, if the facts demanded it.
In both the case of Mr Belhaj and his wife and Mr Rahmullah, the Supreme Court considered that, on balance, the facts leaned in favour of adjudication. As a result, the questions regarding the facts and truthfulness of the allegations being alleged will be determined by the U.K. High Court at a later stage.
PS: I would like to thank Aodhán McGourty for his valuable contribution to this post – Quentin.